Damon Root, in the latest issue of Reason, has an interesting piece explaining the U.S. Supreme Court battle between Aereo, makers of a tiny antenna which allowed subscribers to watch and record TV broadcasts on their mobile phones, and the major American TV networks.

“Subscribers” might be the key word here. I get the impression that Aereo might have won its case had its device been more like an old-fashioned rabbit-ears antenna, which you paid for once, transmitted nothing and received television signals broadcast for free over the public airwaves.

The Aereo model was found to violate the 1976 Copyright Act, but even some justices who sided with the broadcasters asked pointed questions about how their (ultimately successful) argument could affect cloud computing services. There’s too much here to excerpt, so read the whole thing.

In 2012—after writers for National Review and a prominent conservative think tank accused him of fraud and compared him to serial child molester Jerry Sandusky—climate scientist Michael Mann took the bold step of filing a defamation suit. The defendants moved to have the case thrown out, citing a Washington, DC, law that shields journalists from frivolous litigation. But on Wednesday, DC Superior Court Judge Frederick Weisberg rejected the motion, opening the way for a trial.

[…]

Weisberg’s order is just the latest in a string of setbacks that have left the climate change skeptics’ case in disarray. Earlier this month, Steptoe & Johnson, the law firm representing National Review and its writer, Mark Steyn, withdrew as Steyn’s counsel. According to two sources with inside knowledge, it also plans to drop National Review as a client.

The lawyers’ withdrawal came shortly after Steyn—a prominent conservative pundit who regularly fills in as host of Rush Limbaugh’s radio show—publicly attacked the former judge in the case, Natalia Combs Greene, accusing her of “stupidity” and “staggering” incompetence. Mann’s attorney, John B. Williams, suspects this is no coincidence. “Any lawyer would be taken aback if their client said such things about the judge,” he says. “That may well be why Steptoe withdrew.”

Steyn’s manager, Melissa Howes, acknowledged that his commentary “did not go over well.”* But Steyn maintains it was his decision to part ways with his attorneys.

[…]

…on Christmas Eve, Steyn published his blog post, railing against Combs Greene and her ruling, which contained typographical errors and mixed up the defendants:

The appellate judges have now tossed out anything relating to Mann’s original fraudulent complaint, including Judge Combs-Greene’s unbelievably careless ruling in which the obtuse jurist managed to confuse the defendants, and her subsequent ruling in which she chose to double-down on her own stupidity. Anything with Combs-Greene’s name on it has now been flushed down the toilet of history.

When asked about these comments, Steyn made no apologies. “I spent the first months attempting to conceal my contempt for Judge Combs Greene’s court,” he said in an email to Mother Jones. “But really, it’s not worth the effort.” Wednesday’s ruling affirms the thrust of Combs Greene’s order, however. It also concludes that “a reasonable jury is likely to find the statement that Dr. Mann ‘molested and tortured data’ was false, and published with knowledge of its falsity or reckless disregard for whether it was false or not.”

Steyn, meanwhile, appears to be paying a price for his brazenness. He still has no legal representation. (“My check from the Koch brothers seems to have been lost in the mail or intercepted by the NSA,” he wrote. “So for the moment I am representing myself.”) And since his Christmas Eve diatribe, the conservative pundit—who had been writing near-daily posts for National Review Online—hasn’t written a single item. Neither he nor the magazine’s publisher, Jack Fowler, would say why. But Steyn hinted at the reasons in a post on his website: “As readers may have deduced from my absence at National Review Online and my termination of our joint representation, there have been a few differences between me and the rest of the team.”

The future of National Review itself could now be in jeopardy because of this lawsuit. There appear to be conflicting stories about whether Steyn fired his lawyers or whether they withdrew from the case, but I know that if my client insisted on talking about the case at all – much less writing a blog post insulting the judge – I’d be advising him to seek other legal counsel immediately.

I wish Steyn and his (former?) magazine well, but it’s almost like he’s determined to lose. What a pity.

any electronic communication through the use of technology including, without limiting the generality of the foregoing, computers, other electronic devices, social networks, text messaging, instant messaging, websites and electronic mail, typically repeated or with continuing effect, that is intended or ought reasonably be expected to cause fear, intimidation, humiliation, distress or other damage or harm to another person’s health, emotional well-being, self-esteem or reputation, and includes assisting or encouraging such communication in any way.

A person who subjects another person to cyberbullying commits the tort and can be liable for general, special, aggravated and punitive damages and be subject to an injunction.

[…]

If the person committing the tort of cyberbullying is under the age of 19, his or her parent(s) or guardian(s) will be jointly and severally liable, unless they can convince the court that they:

a.) Were exercising reasonable supervision over the child at the time the child engaged in the activity that caused the loss or damage; and

b.) Made reasonable efforts to prevent or discourage the child from engaging in the kind of activity that resulted in the loss or damage.

Factors the court will consider in making this assessment include:

– The age of the child;

– The prior conduct of the child;

– The physical and mental capacity of the child, including any psychological or other medical disorders of the child;

– Whether the child used an electronic device supplied by the parent, for the activity;

– Any conditions imposed by the parent on the use by the child of an electronic device;

– Whether the child was under the direct supervision of the parent at the time when he or she engaged in the activity; and

– Whether the parent acted unreasonably in failing to make reasonable arrangements for the supervision of the defendant.

My time in Junior High was hellish enough without the internet and camera phones, so I shudder to think what it must be like today for those who don’t fit in.

But I also have little faith in the government’s ability to fundamentally understand, much less police, what happens online. And legislation hastily drafted in response to a moral outrage inevitably has serious problems.

Freedom of expression is not absolute. That’s why we have the tort of defamation, and laws against criminal harassment and “hate speech.” But not everything that might disturb you, or hurt your self-esteem, should be considered “bullying.” (I’m often accused of taking my political views way too seriously, and there’s no shortage of commentators who can get my back up almost every day. But does that harm my “emotional well-being,” or do I just need to lighten up?)

And in an age where, in most households, both parents are working, there is only so far a parent can go in supervising their children’s internet usage. It’s easy to delete your browser history (or turn on “private browsing”), so even the most diligent parent will not know everything that their son or daughter is posting. And even if they don’t have home internet access at all, the youngster can just go to any public library.

I don’t want children being bullied online (or offline, for that matter), but there are other societal values – especially freedom of expression, and people not being held legally responsible for things they didn’t know about – which should be kept in mind. If the Cyber Safety Act survives Charter scrutiny at all, here’s hoping the courts keep these principles in mind.

…Rape, assault, harassment: these are crimes with established parameters. All of them could also be called “bullying.” They could also be described as “mean,” and I suppose we could enact a law against being mean. But I’d rather have laws against specific crimes, rather than against vast swaths of vaguely defined human behaviour. Ultimately, bullying is in the eye of the bullied. For many, cyberbullying is equal to a negative thing said about them on the Internet. I’ve met restaurant owners who feel they’re being cyberbullied by Chowhound critics.

The problems with anti-cyberbullying laws don’t end there. Once a law establishes some flawed definition, it moves on to enforcement. Here’s how Nova Scotia’s new Cyber Safety Act, which went into effect yesterday, will go about stopping online abuse:

Someone feels that you’re cyberbullying them. They visit or phone the court and request a protection order against you (minors , or some reason, cannot do so, only adults). A judge decides if their claim meets the law’s definition. The definition of cyberbullying, in this particular bill, includes “any electronic communication” that ”ought reasonably be expected” to “humiliate” another person, or harm their “emotional well-being, self-esteem or reputation.”

If this is the standard, I don’t know a person who isn’t a cyberbully.

“My children did a lot of cruelty toward me.”– Mohammad Shafia, testifying at his trial for murdering his first wife and three daughters

His daughters’ “cruelty” manifested itself in several ways: wearing revealing and immodest clothing, dating boys, and refusing to follow his strict orders. And for that, they had to die.

In June, 2009, a Nissan Sentra was found at the bottom of the Rideau Canal near Kingston, Ont. The bodies of teenagers Zainab, Sahar, and Geeti Shafia, and 50 year-old Rona Amir Mohammad, were trapped inside.

Mohammad Shafia, a prosperous Montreal businessman originally from Afghanistan, insisted one of his daughters had taken the car without permission, and crashed into the canal by accident. His second wife and his 20 year-old son backed him up. But investigators were immediately skeptical, especially after it became clear another, larger vehicle had pushed the little Nissan into the canal.

Moreover, the older Shafias’ behaviour on that tragic night made little sense. In particular, they couldn’t satisfactorily explain why son Hamed drove home from Kingston in their Lexus SUV, reported a fender-bender in a Montreal parking lot, and returned in the family minivan the next day.

The damage to the Lexus perfectly matched debris remaining at the crime scene, and despite their heated denials, Mohammad Shafia, Hamed Shafia, and Tooba Mohammad Yahya were arrested and charged with first-degree murder and conspiracy to commit murder. The trial, and the events leading up to it, are covered in investigative reporter Rob Tripp’s riveting Without Honour: The True Story of the Shafia Family and the Kingston Canal Murders.

Tripp, whose reporting on the Shafia case earned him two National Newspaper Award nominations, begins the story in Afghanistan, where Mohammad Shafia married Rona just before the Red Army invaded. As the country descended into brutal war against the Soviet Union, and then total anarchy after the Russians left, Shafia moved his family to Pakistan, Dubai, Australia, and finally Canada, where he became a successful property developer.

Before leaving Afghanistan, the still-childless Mohammad took a second wife, Tooba, who gave birth to all of the Shafia children. But Rona would play at least as large a role in raising them, and would accompany the family to Canada — officially as a domestic servant, to get around Canada’s laws against polygamy.

Rona was treated little better than a servant in Canada — her passport was taken away to keep her from leaving for another country, and Mohammad and Tooba made it very clear they could have her deported back to war-torn Afghanistan if she didn’t play along. Meanwhile, as teenagers Zainab, Sahar, and Geeti entered adolescence, they openly rebelled against their father’s strict household rules. Eventually, the “humiliation” became too much for their parents and loyal older brother to bear.

Unsurprisingly, considering the subject matter, media coverage of the Shafia murders was controversial, with newspapers and television networks varying in the attention paid to the perpetrators’ (and victims’) religion and culture. Tripp, for his part, reports that Mohammad Shafia was a devout Muslim when it suited his purposes, and that his actions arguably had more to do with his upbringing than his faith:

He did not attend mosque and he did not read the Qur’an daily, as had Rona.
He knew only what he had seen growing up in Afghanistan, that women were the property of men and should be obedient, passive and chaste. In his household, the girls had been ordered not to associate with boys until they had completed their studies. Shafia saw no offence in calling his daughters “prostitutes” and “whores” when it was clear that they had ignored that rule. He was prepared to accept the consequences of his deeds, and he exhorted his son and wife to follow him.

Shafia was so brazen about his desire to punish his children that he mused about it on the telephone with horrified relatives, who later testified against him at trial. They felt it was their duty as devout Muslims to testify against him in court.

Mohammad and Tooba actually testified in their own defence, and did themselves few favours with self-serving and contradictory answers that are almost painful to read. But their lawyers did raise a very strong point — despite all the evidence linking their parents and brother to their deaths, investigators were unable to conclusively determine how the Shafia girls died in the first place. The bodies’ positions in the car, and the absence of any escape attempt, suggest they were killed before the Nissan was pushed into the canal. But how this was done remains a mystery.

Nevertheless, the parties were convicted and sentenced to lengthy prison sentences. The case may not be closed for quite some time, however, as they promptly appealed the verdict. The cultural and religious issues that arose during the investigation and trial, not to mention questions surrounding the way the victims died, will give appellate justices much to consider.

Eventually, a revised and updated edition of Without Honour may be necessary. For now, though, it is a detailed, damning, and thought-provoking chronicle of one of the saddest criminal cases in recent Canadian history.

It is understandable that friends and family members would instinctively rush to the defense of loved ones accused of a terrible crime. And, of course, they’re innocent until proven guilty, and there may be details about the Rehtaeh Parsons case which we haven’t heard yet.

Rehtaeh Parsons’ mother is calling a rash of posters, some placed on the street outside her home, a form of harassment.

“It just felt like someone kicked me in the stomach. How dare they do that?” Leah Parsons told Global News.

“My daughter is gone because of them and they have the nerve to show up on my street and my community where my children live and keep harassing us. That’s harassment.”

Rehtaeh was taken off life support just over a week ago, after she hanged herself in her Cole Harbour home. Rehtaeh was allegedly sexually assaulted by four boys in 2011, and a picture of the assault was distributed throughout her school. An initial police investigation did not yield any charges.

Parsons says it was the assault and subsequent bullying that pushed her daughter to commit suicide.

The posters, printed in bright neon colours, were put up in Cole Harbour, Eastern Passage and Halifax. Entitled “Speak the Truth,” the posters encourage people to “listen before you judge” and to “stay strong” and “support the boys.”

[…]

This isn’t the only backlash. After Sunday’s rally outside the Halifax Regional Police headquarters on Gottingen St, a counter-protest took place with the same message of “support the boys.” There was also a Facebook page created to support the young men, although it has since been taken down reportedly at the behest of the RCMP.

“Just keep your heads up guys,” wrote one poster. “This will go away in time and just keep in mind everybody that knows you, knows you didn’t do anything.”

Global News has tried repeatedly to reach out to the boys and their families, but they have not offered a comment. [emphasis added]

I never saw the defunct pro-accused Facebook page. But the feminist blog Dance of Red has beenmonitoring the alleged rapists’ supporters online, and as you might expect, they’re overwhelmingly focused on attacking the character of a girl who can no longer fight back.

The good news is, Donald Trump or Bill Maher will lose this case. The bad news is, Donald Trump or Bill Maher will win this case:

Donald Trump is filing a lawsuit against Bill Maher for failing to live up to an “unconditional offer” made on NBC’s Tonight Show to donate $5 million to charity if Trump provided a copy of his birth certificate proving that he’s not “spawn of his mother having sex with orangutan.”

We’ll chip in $500 to the charity of Trump’s choice if he actually prevails in court over Maher and collects $5 million.

“Trump would have to prove that Maher’s words and conduct demonstrated, objectively, that he intended to be bound by his statement, and that he was not merely making a joke,” says Dori Ann Hanswirth. “Given the outrageousness of Maher’s statement, the amount of money involved and the fact that his statement was made on a comedy TV show, it seems that Trump has an uphill battle here.”

[…]

…

perhaps the case that might most demonstrate why Trump is likely to lose is the case ofthe Pepsi Points.

In 1999, John Leonard sued PepsiCo., attempting to get the company to hand over an AV-8 Harrier II jump jet. The advertised “offer” came in the form of a television commercial that showed the big prize for 7 million Pepsi points. Leonard had 15 points and attempted to send Pepsi a certified check for $700,000 — 10 cents a point, per contest rules — to cover the rest.

Pepsi successfully argued that its advertisement was intended to be humorous.

“Plaintiff’s insistence that the commercial appears to be a serious offer requires the Court to explain why the commercial is funny,” wrote a judge. “Explaining why a joke is funny is a daunting task; as the essayist E.B. White has remarked, ‘Humor can be dissected, as a frog can, but the thing dies in the process.’ ”

Ultimately, Leonard was deemed to be a loser.

As the judge wrote: “A reasonable viewer would understand such advertisements as mere puffery, not as statements of fact. … The Court rejects plaintiff’s argument that the commercial was not clearly in jest.”

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About Me

Damian J. Penny is a lawyer in Dartmouth, Nova Scotia, practicing family and criminal law.

Penny is a native of Mt. Pearl, Newfoundland. After earning a Bachelor of Arts (major: Political Science) from Memorial University of Newfoundland in 1995, Penny studied law at the University of New Brunswick, graduating in 1998.

He was called to the Bar of Newfoundland and Labrador in 1999, and practiced in St. John’s and Corner Brook until 2007, when he became a member of the Nova Scotia Barristers’ Society. Mr. Penny remains a non-practising member of the Law Society of Newfoundland and Labrador.